Sutherland and Taft

[daviwag at regent.edu]

I once came across a volume of Sutherland speeches, and found one from about
1919 that was very vituperative against Germans.  Of course, so were a lot
of people in those days.  Still, I've never been able to stifle a suspicion
that this had something to do with his dissenting in Meyer.  It wasn't the
principle of the thing, since he was with the majority in Pierce.
 
David M. Wagner
Regent University School of Law
 


  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
DavidEBernstein at aol.com
Sent: Sunday, March 19, 2006 8:47 AM
To: paul-finkelman at utulsa.edu
Cc: SLevinson at law.utexas.edu; CONLAWPROF at lists.ucla.edu
Subject: Re: Sutherland and Taft


I'm leaving town, so I can't respond in full, but Olmstead was almost
certainly correct as a matter of Fourth Amendment law, given that that
Amendment was, on its face, intended to protect tangible property from the
government.  I'd certainly buy a Ninth Amendment argument, which wasn't
raised, of course.  It's unfair, more generally, to accuse either Taft or
Sutherland of being "repressive" when they joined unanimous or
near-unanimous opinions, which doesn't get them any brownie points, I admit,
but certain isn't evidence of being especially repressive, as opposed to
going along with settled law. Sutherland joined the majority in Stromberg v.
California, and if I'm remembering correctly, wrote one of the opinions
invalidating the Scottsborough Boys convictions.
 
If we're going to attack Justices as repressive for joining consensus
opinions that violate current notions of civil liberties, I'm confident I
could make a very good case against Brandeis.
 
In a message dated 3/19/2006 12:40:43 AM Eastern Standard Time,
paul-finkelman at utulsa.edu writes:

Olmstead to start for Taft with Sutherland joining him; even Butler
dissented in this one.
Sutherland's position in Near is about as anti free speech as you can get
 and varous Communist cases (Gitlow, Whitney, ; 
Taft and Sutherland in US v. Schwimmer
Sutherland's disgraceful racist position in Moore v. Dempsey
Taft and Sutherland (and most everyone else) in Buck v. Bell
Taft opinion in Gong Lum
Sutherland in Nixon v. COndon
Sutherland in Herndon v. Lowry

 
David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste

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